Van Dyck Law, LLC is a full service Estate Planning & Elder Law practice. They write about comprehensive planning in the areas of wills, trusts, powers of attorney, medical directives, Elder Law and probate & estate administration.

Power Of Attorney

11/21/2018

“More than $150,000 is stolen from an 86-year-old man and police say it was his son and daughter-in-law who did it.”

A Pennsylvania couple is facing charges of felony theft and access device fraud for allegedly stealing more than $100,000 from the man’s father over a four-year period. Chester Robert Garman III and his wife Kathy Alice Garman perpetrated the fourth largest financial elder financial abuse case since 2004, according to Dauphin County Commissioner George Hartwick in a report from Fox 43.

Reports of elder abuse in the Pennsylvania county continue to rise every year. Thus far in 2018, county officials have received more than 1,600 reports of elder abuse.

"In Dauphin County we want to make it clear that if there are suspected abuses occurring, we will take actions," said Hartwick. "We are communicating, and we will do everything to make sure we are protecting out seniors and bring those individuals who perpetrate those crimes to justice."

It’s not uncommon in elder abuse cases—such as the Garman's—for a person familiar to the victim to be the bad actor, someone they know and trust. The Dauphin County Area Agency on Aging says there are many signs of abuse. If a person sees anything they think is questionable, they should call the authorities.

Elder abuse can come in many types:

Physical elder abuse: the non-accidental use of force against an elderly person that results in physical pain, injury or impairment;

Emotional elder abuse: causing the senior emotional or psychological pain or distress, like intimidation through yelling or threats and isolation;

Sexual elder abuse: contact with an elderly person without their consent;

Elder neglect or failing to fulfill a caretaking obligation;

Financial exploitation: unauthorized use of an individual’s personal funds or property; and

Healthcare fraud and abuse by unethical doctors, nurses, and other professional care providers.

Dauphin County District Attorney Fran Chardo says to help prevent financial abuse of an elder, loved ones should have a power of attorney signed—especially for a senior who has a caregiver, even if they are a family member. Without this legal document, it can be a license to steal.

11/14/2018

“An important part of caring for your aging parents is understanding their situation and knowing what they want. If you don’t know, then it is up to you to figure it out.”

It’s a good idea to talk with your parents on a regular basis about their wishes for the future, so that everyone can get comfortable with the conversation and the topics, says Next Avenue in the article “How to Have Difficult Conversations With Your Aging Parents.” You’ll all avoid a fair amount of stress and guesswork, if you can have these open and frank conversations.

Here are the conversations you need to have:

The Money Talk. What’s their financial situation? Do they have enough to pay their bills right now? What if they live another ten or twenty years? Do they have a will? Do you know where the will is, and the name of the estate planning attorney who created it? Do they have powers of attorney for finances in place?

The Health Talk. Medical issues that you’ve heard about but aren’t fully informed about need to be clarified. What medications do they take, and is there a list posted on the refrigerator, or located somewhere you can get to it, in the event of an emergency? Have they properly documented a power of attorney for healthcare?

The Aging Talk. Do they plan on aging at home, or are they considering moving to a continuing care facility? What senior living options should they consider, if and when they can’t live on their own anymore?

The End of Life Talk. This is the hardest one, but it is hard for everyone. If they should have a terminal illness, what do they want to happen? Do they have a medical directive, or a living will? How do they feel about extreme measures being taken to sustain life, if they are incapacitated?

The Family Legacy Talk. This is a warmer, happier conversation. What do they want the family to remember about them, and how can you work together to assemble the things that will help accomplish this? Are there family recipes, photo books, treasured heirlooms, videos or jewelry they want to pass along? Are there stories they want to share?

Note that these are not one-time conversations, but processes. Everyone will respond differently, and some parents may need more time to reflect and consider their answers than others. Your parents will need to be ready to have these conversations with you. Some conversations may touch on a raw memory and have to stop, to resume at a later point.

Depending on your parents’ personalities, you may want to speak with them together, if they are both living, or individually. One might be more comfortable discussing certain matters without the other present.

Take notes of the conversation. You’ll be able to review the notes with them if need be and share that information with siblings and family members. You can also see what’s left out. Your notes are not a legally binding document, but they can help when their wills are created or revised.

Speak with an estate planning attorney as part of this process. Estate planning attorneys are fluent in the issues of aging and will be able to discuss sensitive matters with your parents and you, bringing up issues you may not have considered. They will sometimes also have Life Care Specialists who assist with these discussions.

11/06/2018

“Without these important documents, your heirs could overlook financial accounts or miss out on life insurance benefits.”

Who likes to think about death and end-of-life arrangements? Not too many of us, to be sure. However, being prepared for the inevitable is a wise thing to do, and it's a kind thing to do for your family.

US News & World Report’s recent article, “12 Documents to Prepare Now for Your Heirs,” says that when people don't have their paperwork ready, it can be a huge headache for the family. A family can be left with all kinds of paperwork to sort out, while dealing with grief. Even worse, heirs may forfeit life insurance proceeds and tax deductions or overlook accounts they don't know exist. That's why it's critical to have important documents ready for loved ones. Here are the documents you should start preparing right away:

A will. This is a legal document in which you name an executor to carry out your wishes, heirs to receive your assets and a guardian if you have minor children.

A letter of explanation. Your will stipulates how assets are to be divided. However, a letter of explanation can provide the reasons for these decisions. This can be helpful, if the estate is to be divided unevenly between children.

List of financial accounts and beneficiaries. Keep a list of all your finances, such as bank and retirement accounts and brokerage funds. Each may have a designated beneficiary or transfer on death provision, known as a TOD. A person who’s named as a beneficiary or TOD designee automatically will receive ownership of the asset after you die. Make sure you keep these beneficiary designations up-to-date.

Personal inventory. Most wills distribute personal property in vague terms, like designating jewelry to one person and household goods to another. To be certain that nothing significant is overlooked, create an inventory of personal items. This inventory can also list items that may be stored in another location, unbeknownst to your family.

Power of attorney. This form is an important document for your family, if you become incapacitated because of an illness or accident. A power of attorney allows a designated person to make decisions on your behalf. One form is for financial decisions, and another is for health care.

Life insurance policies. Your family can miss significant life insurance benefits, if they don't know you have a policy, or it’s been lost or misplaced. Keep records of your life insurance plans and place it with your financial records.

Real estate records. Add deeds, assessments, mortgage statements and property tax information to the documents you've prepared for your heirs. Collecting the records for them in advance will make their lives easier.

Tax returns. List the name of your CPA or tax preparer, if you have your taxes professionally done. He or she can help your family with filing final tax returns for your estate. If you file your own returns, print a copy for your files and record any login information for online tax preparation services.

Logins for accounts. Create a list of your usernames and passwords for financial accounts, email, and social media and keep it where heirs can access the information.

A digital estate plan. Some states recognize digital estate plans as legally binding. However, even if it isn’t, it can be a great resource for your family. A digital estate plan states what will happen to your digital assets, like your social media accounts, websites, digital photos, intellectual property and other files and documents. Within your plan, you can name a digital executor and list those you've named as legacy contacts on specific platforms, such as Facebook and Twitter.

An ethical will. This letter describes what you'd like remembered as your legacy, such as passing down values. An ethical will can be used to share memories or to impart wisdom.

Your final wishes. If you've made prearrangements for your funeral or cremation, place that information with your will and other end-of-life documents. Your final wishes should also include information about organ donation, pet care and who should be notified of your passing.

It’s a big job to nail down these 12 tasks but getting them completed will be a wonderful final parting gift for your family.

The father was an extremely intelligent man, with a master’s degree in engineering and an MBA from a prestigious business school. When diagnosed with dementia, he and family members moved quickly to ensure that the correct documents were in place, working with a trusted estate planning attorney. The family’s plan worked well, as his father was able to be active for the early stages of the disease and never injured himself or anyone else.

The elderly, and especially those with dementia, are very vulnerable. They can make poor decisions and are targets of scam artists. There were attempts to scam this gentleman, but the damage was minimal, because there was good planning and good execution of the plan, as well as safeguards.

The man’s wife used the power of attorney to get the bank to maintain strict controls over their funds. There were offers of new credit cards, personal loans and home equity loans coming from the family’s bank. She was able to stop those offers from entering the house.

As his disease progressed and he spent late nights watching infomercials and surfing the net, things started to arrive at the house that were not needed. Limits were put on his credit card. He was removed as a co-trustee for the family’s living trust. The trust document simply required two doctors to remove him as a trustee, so he could not access brokerage accounts, write checks or do any online banking.

His living will was a huge help, when he entered hospice care. When a sibling from out of town arrived, she was outraged to hear that he was not being fed. At that point, he was expected to live only a few days, and that had been his request, which was documented in the living will. After reading it, she understood that this was his wish, and a potential problem was averted.

It wasn’t all neat and tidy. The bank process took time and there was a struggle over the power of attorney, as is commonly encountered. The POA is an important document and banks preferred, as do many institutions, to have their own forms done. Some of the doctors were not as respectful of his wishes, and some were hesitant about putting in writing a recommendation that he no longer drive.

However, despite the difficulties, three things got this family through their father’s journey. The legal documents were in place, the family was nearby and able to help out and there were friends and others who gave tremendous emotional support.

Don’t wait until a diagnosis of Alzheimer’s or dementia to start preparing the correct documents. An experienced estate planning attorney will be able to prepare you and your family for any eventuality.

10/18/2018

“An important part of caring for your aging parents is understanding their situation and knowing what they want. If you don’t know, then it is up to you to figure it out.”

It’s a good idea to talk with your parents on a regular basis about their wishes for the future, so that everyone can get comfortable with the conversation and the topics, says Next Avenue in the article “How to Have Difficult Conversations With Your Aging Parents.” You’ll all avoid a fair amount of stress and guesswork, if you can have these open and frank conversations.

Here are the conversations you need to have:

The Money Talk. What’s their financial situation? Do they have enough to pay their bills right now? What if they live another ten or twenty years? Do they have a will? Do you know where the will is, and the name of the estate planning attorney who created it? Do they have powers of attorney for finances in place?

The Health Talk. Medical issues that you’ve heard about but aren’t fully informed about need to be clarified. What medications do they take, and is there a list posted on the refrigerator, or located somewhere you can get to it, in the event of an emergency? Have they properly documented a power of attorney for healthcare?

The Aging Talk. Do they plan on aging at home, or are they considering moving to a continuing care facility? What senior living options should they consider, if and when they can’t live on their own anymore?

The End of Life Talk. This is the hardest one, but it is hard for everyone. If they should have a terminal illness, what do they want to happen? Do they have a medical directive, or a living will? How do they feel about extreme measures being taken to sustain life, if they are incapacitated?

The Family Legacy Talk. This is a warmer, happier conversation. What do they want the family to remember about them, and how can you work together to assemble the things that will help accomplish this? Are there family recipes, photo books, treasured heirlooms, videos or jewelry they want to pass along? Are there stories they want to share?

Note that these are not one-time conversations, but processes. Everyone will respond differently, and some parents may need more time to reflect and consider their answers than others. Your parents will need to be ready to have these conversations with you. Some conversations may touch on a raw memory and have to stop, to resume at a later point.

Depending on your parents’ personalities, you may want to speak with them together, if they are both living, or individually. One might be more comfortable discussing certain matters without the other present.

Take notes of the conversation. You’ll be able to review the notes with them if need be and share that information with siblings and family members. You can also see what’s left out. Your notes are not a legally binding document, but they can help when their wills are created or revised.

Speak with an estate planning attorney as part of this process. Estate planning attorneys are fluent in the issues of aging and will be able to discuss sensitive matters with your parents and you, bringing up issues you may not have considered. Choose an Estate Planning attorney who has the ability to create a true long term care plan, and has a person designated to assist families through this process as their loved one ages and their needs change.

10/12/2018

“What happens after you leave this world and pass on into the next one, whatever that may be? That depends on you! I’m not talking about what happens to your remains or whether or not there is an afterlife. I’m talking about what happens right here on earth after you depart.”

No, not just because it’s the right thing to do and not just because you’re curious. It’s because you want your family to remember you for the awesome legacy you plan on leaving, not because of the horrible hot mess you left behind that they spent three years trying to figure it out, while trying to live their lives.

Estate organization is not the exact same thing as estate planning. An experienced estate attorney or elder law attorney can help you draft your will, your advance directive, your power(s) of attorney and a trust, if you need it. Your attorney most likely also has a copy of those documents.

However, the attorney has no power over what you do with your original estate planning documents, once you leave their office.

One idea is to develop a guidebook or “game plan” for your family and loved ones, while you’re alive. It’s known that there’s a strong correlation between how we face death and prepare our families—and their ability to survive, adjust and start the recovery process. Organizing your estate has been called a “gift of love” that goes far beyond when you can be around to take care of your family.

Answer these questions to start the estate organizing process:

Does a family member know where to find your advance directive, if you end up in the hospital?

Where are your legal documents and who in your family knows where to find them?

Who has access to your bank accounts and knows your login data?

Are you now caring for someone? Who’d assume that responsibility, if you’re unable to do so?

Have you made final arrangements for your death, funeral and burial or cremation?

Who knows about the plans and where the paperwork is located?

Where are your insurance documents, and who knows where to find them?

Who’ll take care of your pets, when you are no longer able?

Lastly, keep in mind that creating the plans and organizing documents is only half of the task. You also need to communicate. The more you’re able to communicate your wishes and what you have organized to your family, the more love you’re showing them while you’re around to enjoy each other. They will also be better prepared to grieve in a good way, embrace your memory and move on with their lives.

10/11/2018

“Of course, you know you should have a will. Then why do so many people procrastinate on getting a will?”

There’s news of a celebrity dying without a will nearly every month.

Merrill Lynch and the consulting firm Age Wave found from their recent survey that about 50% of study participants age 50 and older didn’t have a will.

The Minneapolis Star Tribune’s recent article, “How to get started on making a will,” reported that many people don’t care to talk with close family members about important financial topics, like their level of financial security, plans for living arrangements in retirement, inheritance or long-term care.

The Merrill Lynch/Age Wave report, “Family & Retirement: The Elephant in the Room,” explains that some of this is due to time constraints and that people say they’ll do it eventually.

However, it’s easy to get started. You can draft an ethical will, also known as a values statement or letter. Do this in the next few weeks or month. The thought is to capture for your immediate family, as well as your grandchildren and great grandchildren, what you want them to know about your values, what mattered to you in life, what traditions you hold dear and how you’d like the world to become a better place.

Creating an ethical will begins with a family conversation. Once you begin recording your values and discussing them with your family, it’s a short hop to discussions about your estate plan.

A great benefit of starting the dialog with an ethical will, is that there’s less pressure on the family and more time to become comfortable with the topic.

These discussions will lead you to finally meet with an estate planning lawyer to write your will.

In addition to creating your estate plan, you’ll want to arrange your finances, so you can age comfortably, draft a durable power of attorney, in case you become incapacitated and write an advanced health directive.

These details will come out of those initial discussions about values, and not the other way around.

10/03/2018

“A new survey conducted by LifeWay Research for the Southern Baptist Foundation found more than half of Southern Baptist pastors, overall, do not have a will, trust, living will, electronic will, legacy story or durable power of attorney with health care directives.”

However, executives at LifeWay Research say the survey shows a lack of awareness about estate planning and the laws which may be factors in pastors not having a plan in place. Procrastinating is common, but failing to have an estate plan in place can have a devastating impact on an estate.

Of course, basic estate planning saves a lot of trouble for family and loved ones. However, in addition, taxes can be minimized and assets protected.

According to the survey, pastors age 18-44 are the least likely to have a will (31%) or a durable power of attorney with health care directives (14%). Only about half of those pastors closest to retirement (age 55-64 and 65-plus) have a will (54% for both groups). Likewise, few of those closest to retirement (age 55-64 and 65-plus) have a health care durable power of attorney (25% for both groups).

It’s a bit of a surprise that so many pastors don’t have a plan for their families and property after their death, especially those that should be most likely to be thinking about this issue—the ones with young families. They seem to be the least prepared.

About 64% of the clergy surveyed, agree with a statement that the court decides who will care for a child, if the last parent dies without a will; 16% percent disagree, with 21% saying they didn’t know. When asked about assets, the survey showed that 48% of pastors said that if someone dies without a will, their family decides what happens with the assets of the deceased; 33% disagree, and 19% "don't know."

However, both with property and children, the court decides what happens to them, if there’s no will.

These estate planning questions were part of a mail and online survey of pastors conducted between April and June 2018. The mailing list was randomly drawn from a list of all Southern Baptist churches and included more than 1,100 completed surveys.

10/02/2018

“According to a caring.com survey, only 42 percent of U.S. adults have estate planning documents, including a will.”

Like many Americans, Aretha Franklin failed to draft a will. More than 58% of us are in the same boat: no will or estate planning documents, leaving our families and heirs in peril. The Chicago Tribune’s recent article, “Don't leave a mess for your heirs” reports that, what’s even more troubling, is the fact that for those with children under the age of 18, just 36% have an end-of-life plan in place.

Many of those who haven’t done any estate planning, say they just haven't gotten around to it. That’s understandable, but it’s important that you conquer your anxieties associated with this emotional subject and take control.

For Aretha Franklin's estate, Michigan (her state of residence) will decide who will get what. The local probate court will oversee everything from property, retirement accounts and the residuals that flow from her music catalog. It’s possible that her assets will be split among her four children. However, as many parents know, some kids are more prepared to manage financial distributions than others—a big reason why estate planning is so important.

If you have property you want to go to specific individuals, you should create a document with instructions as to who gets what.

Some people think that because they don't have a high net worth, they don’t need to worry about such things. However, estate planning isn’t just about money—anyone with young children should have a will, because a will names the guardians of minor children. You want to be certain that you, and not the courts, designate your children’s guardians.

When you’re ready to start or revisit the planning process, talk to a qualified estate attorney (yes, pay for a lawyer and don’t do it yourself), here are the basic documents to consider:

Will: A document that makes certain your assets are passed to designated beneficiaries in accordance with your instructions. The will designates an executor, who will oversee the distribution of your assets. If you have minor children, you must name a guardian for them.

Letter of Instruction: This may include the appointment of someone who will ensure the proper disposition of your remains. That can be important, if you’re choosing a method that’s contrary to your family's traditions.

Power of Attorney: This gives a person you select the authority to act as your agent, in certain circumstances.

Health Care Proxy: This gives a person you select, the power to make health care decisions on your behalf, if you lose the ability to do so.

Trusts: Revocable (changeable) or irrevocable (not-changeable) trusts may be useful, depending on family and tax situations. You need an experienced trust attorney to help you decide, if this is a sound strategy and to properly prepare the documents.

09/24/2018

“The reality is that your traditional estate plan will result in a 70% chance that your wealth will be lost by the second generation, and a 90% chance that your wealth will be lost by the third generation.”

You may have a traditional estate plan that includes a last will and testament, powers of attorney, a health care proxy, living will and perhaps a revocable living trust. You may even have an irrevocable life insurance trust that owns your life insurance policies to avoid potential estate taxes and to protect the policy proceeds from creditors. Finally, you’re considering transferring a minority share of your business to a family trust. This will move assets out of your estate, mitigate estate taxes and protect the assets from creditors. However, you have some questions about whether this traditional estate planning will be successful.

Forbes’ recent article, “How To Turn Your Estate Plan Into A Legacy Plan,” says that perhaps you’ve also heard that legacy planning is the solution to your problem. However, you are worried about the expense. If you create a legacy plan, does it mean you’ve wasted time and money? No, it doesn’t. The documents you’ve already prepared for estate planning, can most likely be used and incorporated into a more effective legacy plan. Let’s look at how to turn an estate plan into a legacy plan.

Form A Legacy Team. This effort takes a team. You need a team of professional advisors working together to move you towards success. A legacy team will typically begin with three main areas of expertise: legal (estate planning attorney), tax (accountant) and wealth/financial planning (wealth advisor). From there, the legacy team may expand, based on your needs and circumstances. Your team’s makeup will depend on you and your family’s specific needs and circumstances.

Get A Legacy Mindset. Think “process” versus “plan.” Traditional estate planning is often seen as complete, once estate planning documents have been prepared and signed. However, the reality is that after you’ve created legal entities and a structure for your estate and/or legacy, you’re just at the start of the process. The legacy plan is a recipe for your success and the framework through which your legacy is going to thrive and grow.

Educate Yourself on What You’ve Already Created. With your legacy team in place and with your legacy mindset, understand what your existing estate plan does and doesn’t do. Review your estate plan and determine if it distinguishes between legacy and non-legacy assets (which almost always should be handled differently on your death). You also need to plan for your life and how to build the legacy you ultimately want to leave behind through specific assets in your estate.

Design and Execute the Plan. Your legacy plan is about establishing and committing to a process that lets you and your legacy team remain proactive and intentional in implementing your legacy plan. The right process and legacy team will ensure that your plan evolves with you, and they will move you forward to achieve your greatest legacy and success.